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Justice Alito rejects recusal in major tax case

Alex Wong
Getty Images

Supreme Court Justice Samuel Alito says he will not recuse himself from a major tax case. His statement, attached to a Supreme Court orders list on Friday, came after Sen. Dick Durbin, D-Ill., the chairman of the Senate Judiciary Committee, wrote to the chief justice in August, urging that steps be taken to assure that Alito not take part in the tax case.

Durbin's letter said that Alito should be recused because the justice had recently done two interviews with David Rivkin, a lawyer and opinion columnist with the Wall Street Journal, who is one of the lawyers in the tax case that is to be argued before the court, likely in December.

Alito, in a four page statement, rejected that argument as "unsound," noting that justices over the years have often given interviews to news organization, including NPR, even though some of those organizations have had cases before the court. Similarly, he noted, justices do not recuse when a former law clerk, a friend, or former colleague is involved. What's more, he observed, the court routinely accepts briefs from members of Congress who voted for or against their nominations. "If we recused in such cases," he wrote, "we would regularly have less than a full bench and the work of the court would be substantially disrupted or distorted."

"I think that Alito has the better argument in this case," observed legal ethics expert Stephen Gillers, who recently has been highly critical of Alito and some other justices for their acceptance of luxury trips and other undisclosed gifts. This time, though, Gillers, a professor at NYU law school, sees Alito as correct and he notes that Rivkin, the Wall Street Journal opinion writer, is not the lead lawyer in the tax case and is not arguing the case before the court.

Still, Sen. Durbin pushed back. In a written statement, he said that Alito "surprises no one by sitting on a case involving a lawyer who honored him with a puff piece in the Wall Street Journal."

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Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.